(Delivered in Parliament on 8 May 2019)
The Workers’ Party is not denying the problem of misinformation, nor that there is a real risk of the public being misled, especially in the digital age. The concerns range from the creation of bots to spread disinformation, profiting from knowingly spreading falsehoods, and possible interference in elections by external state-sponsored actors.
That said, the Bill before the House to tackle online falsehoods has generated alarm and strong concern. My party colleagues before me have argued some of the key objections of the Workers’ Party that compel us to reject the Bill. One such key objection is that the Bill entrusts the job of gatekeeping truth to the Ministers and their Alternate Authorities, who are part of the Executive government and would be making certain decisions as interested persons rather than neutral arbiters.
During a constituency event over the weekend, some residents expressed to me that when POFMA is passed, they would likely be very, very careful about what they post online, and about private messages they send through their phones. Thus, when I saw the Straits Times opinion piece by SMS Edwin Tong on 6th May, I was struck by the headline, which read that only a “small group” were “crying wolf”. I know that his intention in writing that piece was specifically to respond to the Asia Internet Coalition. But as he himself explained yesterday, the Bill before the House is “platform neutral”, and will apply to even communications on closed platforms such as messaging groups. Anyone who uses a mobile phone can fall foul of the Bill.
Some Nominated Members have proposed amendments to the Bill in Committee. The amendments seem to accept the powers being given to Ministers to be the arbiters of truth and public interest, but attempt to scope them. The amendments also ask for more transparency and for an independent advisory council. While I appreciate their intention and efforts to try to mitigate the dangers of the Bill, the Workers’ Party’s objections are more fundamental and require us to reject the Bill.
For my part, I will focus my speech on the following concerns: 1) The limited role of the Courts under POFMA; 2) Why POFMA may endanger the national interest.
Limited role of the Courts
The Workers’ Party Secretary General MP Pritam Singh had earlier set out why the Party believes that the POFMA powers to issue directions should be vested in the Courts rather than Ministers. The government, on its part, has been stressing that Ministers are circumscribed by an appeals process and judicial oversight. It is important to examine the details of this.
First, let us look at appeals. Appeals are basically requests to re-look at the original decision on the merits, to decide if the decision was right or wrong.
Under what circumstances can appeals be made to the High Court? The Bill has explicitly restricted the grounds of appeals against Minister’s directions. Under Clause 17(5), for example, it is provided that the High Court “may only set aside a Part 3 Direction on any of the following grounds on an appeal: (a) that the person did not communicate in Singapore the subject statement; (b) that the subject statement is not a statement of fact, or is a true statement of fact; (c) it is not technically possible to comply with the Direction”. These are the only 3 grounds on which the High Court can set aside the Minister’s directions. The burden of proof falls to the individual, to prove that his statement was true. This is potentially very onerous due to information asymmetry between the government and individuals, a point I shall return to later.
The appeal to the Courts is thus very tightly scoped. The High Court cannot inquire into the merits of the decision, whether in the court’s view that decision should have been made in that way. On an appeal, the Court cannot ask important questions such as: a) Is the Minister over-reacting? b) Does the Direction impose obligations on the communicator which are excessively onerous or harsh? c) Does the public interest require the direction to be issued?
The government has argued that the Courts can in fact look into proportionality and into the question of public interest. The argument, as I understand it, is that these matters can be looked into under the usual judicial review route. So let us look at judicial review.
I agree that POFMA does not carry a clause ousting judicial review of Ministers’ decisions, so judicial review exists. But what does judicial review mean?
First, judicial review is a public law remedy which requires the individual to take out a separate legal action against the government, usually by suing the Attorney-General as the government representative. In order to do this, the person must first apply for leave or permission from the court to commence a judicial review. If leave is obtained, the judicial review application can then be filed. These steps will take time. Two sets of legal costs will thus be incurred. The litigant will also be facing the formidable Attorney-General’s Chambers, with limitless resources to defend the government. There was no mention by Ministers yesterday that the judicial review process would be made simpler or cheaper.
Secondly, in a judicial review, the Court is not looking into whether the Minister’s decision is right or wrong. The purpose of judicial review is to determine if the Minister’s decision is legal and rational. Therefore, if the Minister asserts that a correction direction is needed in the public interest, the Court cannot delve into the evidence to weigh up whether the direction should be issued or not. So long as the Minister’s reasons are in line with the purpose of the Act, the Court will generally not interfere. Judicial review is thus a difficult proceeding to mount and to win.
Looking in totality then, it is my assessment that the powers of judicial oversight of Ministers’ powers under POFMA are severely limited.
POFMA may endanger National Interest
The government should not assume that Singaporeans who criticise or query it are malicious. Criticisms and queries may well arise out of genuine concern, and provide opportunities for detailed and measured responses. If we wish to imbue citizens with a real sense of ownership, we should focus on empowering minds and hearts with knowledge. This knowledge should not just come when falsehoods emerge, but on an ongoing basis. The government has confirmed that it agrees that arming citizens with knowledge is a powerful weapon against falsehoods.
To this end, the government should do some introspection as to how it may itself have contributed to the spread of falsehoods by its control of information. One past episode on how incomplete information may lead to erroneous conclusions happened 15 years ago. Two economists were rebuked by the government for putting up job figures suggesting that the majority of new jobs were taken up by foreigners in the previous 5 years. This was strongly refuted by the government, which then released statistics previously not disclosed, showing that, in fact, for every 10 jobs created, nine went to residents. The two economists were labelled as “irresponsible” and “unprofessional”. In their defence, they said that they had taken their initial figures from MOM’s website, while the newly released figures were information they had no access to. If the same had occurred after POFMA was enacted, would the professors be required to tag corrections to their reports online? How would their professional standing thereby be diminished, in the eyes of their colleagues, students and the world at large? Worse of all, would they and other economists choose to steer clear of researching or writing about Singapore, to avoid such backlashes? If so, Singapore would be the poorer for it.
The government has been trying hard to convince the public that fears about the Bill having a chilling effect on the freedom of speech are unfounded. How convincing is this? This Bill is not only targeted at deliberate falsehoods but at all statements the government deems false, even if innocently communicated. Under Clauses 11(4) and 12(4), it is stated that correction directions may be issued by the Minister or the Alternate Authority even if the person who communicated the statement did not know or had no reason to believe that the statement was false. The Minister or the Alternate may even require the correction notice to be published in print form in a specified newspaper, which cost will have to be borne by the person concerned (Clause 13(6)). As it would be up to the Minister or the Alternate to specify the size of the correction notice, the person will have to buy the required space from the newspapers, which could easily run into thousands of dollars.
The government says that it is giving assurances in Parliament that will be recorded in Hansard, and other controls will be enacted in subsidiary legislation. As POFMA is a law that potentially catches all Singaporeans who use digital communication, the government should make the law as clear and accessible as possible. Is it reasonable to expect an ordinary citizen who wants to understand POFMA to have to cross-refer from the Act, to subsidiary legislation, and then to the Parliamentary debates as well?
Before I end, I would like to address briefly the suggestion about the courts being the first arbiter and whether the courts can move fast enough in certain situations. First, as debated by my colleagues earlier, we believe this is a matter of how the courts are resourced and how procedures are streamlined. Secondly, the government is very powerful and well-resourced. It has vast channels to push out its messages and corrections, whether through the mass media or its internet channels, while waiting for any adjudication under POFMA. Third, at the outset of this debate, the Minister highlighted that he and the government already had wider powers under other laws, and that POFMA was a voluntary scoping down. Thus I do not believe that the government will be rendered helpless in the circumstances.
In summary, we have grave objections to POFMA and the damage that it will do to Singaporeans who wish to discuss and debate current affairs and topic of national importance. POFMA is lop-sided and gives the Ministers too much power, in matters where they are interested parties. We oppose the Bill.